Exhibit 2.1
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of January 26,
2006 (this "Amendment"), is made and entered into by and among WAVE WIRELESS
CORPORATION, a Delaware corporation ("Parent"), WAVE ACQUISITION CORPORATION, a
Nevada corporation ("Merger Sub"), and WAVERIDER COMMUNICATIONS INC., a Nevada
corporation (the "Company"), with reference to the following facts:
A. Parent, Merger Sub and the Company are parties to that certain
Agreement and Plan of Merger, dated as of January 3, 2006 (the "Merger
Agreement"). Capitalized terms used and not otherwise defined in this Amendment
shall have the same respective meanings given to such terms in the Merger
Agreement.
B. Parent, Merger Sub and the Company desire to amend the Merger
Agreement as set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Amendment to Section 1.5(a)(iii). Section 1.5(a)(iii) of the Merger Agreement
is hereby amended and restated in its entirety as follows:
All of the Company's convertible debentures and all of the
shares of Company Preferred Stock outstanding and held of
record by Crescent immediately prior to the Effective Time
shall be converted into the right to receive a number of
shares of Parent Preferred Stock and warrants to purchase a
number of shares of common stock, par value $0.0001 per share,
of Parent (the "Parent Common Stock") in accordance with the
terms and conditions set forth in that certain Amendment
Agreement, dated as of January 26, 2006, by and between
Crescent and the Company.
2. Amendment to Section 1.5(a)(iv). Section 1.5(a)(iv) of the Merger Agreement
is hereby amended and restated in its entirety as follows:
Except as provided in clauses (i) and (ii) above and subject
to Sections 1.5(b), (c), (d) and (e), each share of Company
Common Stock outstanding immediately prior to the Effective
Time shall be converted into the right to receive a number of
shares of Parent Common Stock equal to the Exchange Ratio (as
defined herein) such that the total number of shares of Parent
Common Stock issued or issuable in connection with the Merger
(including, without limitation, the shares of Parent Common
Stock issuable upon (A) exercise of all Company Options and
Company Warrants assumed by Parent pursuant to Section 1.5(f),
and (B) conversion and exercise of all Parent Preferred Stock
and warrants to purchase Parent Common Stock issued to
Crescent pursuant to Section 1.5(a)(iii)) (collectively, the
"Merger Consideration"), shall equal fifty-percent (50%) of
Parent's Fully Diluted Shares Outstanding immediately after
the Effective Time. By way of example, as of the date hereof
and based upon the Fully Diluted Shares Outstanding of Parent
and the Fully Diluted Shares Outstanding of the Company, each
as set forth on Schedule 1.5, the "Exchange Ratio" shall
initially be 1.2179, subject to adjustment at the Closing as
provided in Sections 1.5(b) and (c).
3. Amendment to Section 4.17(a). Section 4.17(a) of the Merger Agreement is
hereby amended and restated in its entirety as follows:
[RESERVED]
4. Amendment to Definition of "Parent Preferred Stock". The definition of the
term "Parent Preferred Stock" in Article VII of the Merger Agreement is hereby
amended and restated in its entirety as follows:
"Parent Preferred Stock" means one or more series of preferred
stock, par value $0.0001 per share, of Parent which shall be
convertible into shares of Parent Common Stock and have such
other rights, preferences and privileges as may be mutually
acceptable to Parent, the Company and Crescent.
5. Effect. Except as and to the extent amended by this Amendment, the Merger
Agreement shall remain in full force and effect.
6. Counterparts. This Amendment may be executed in two or more counterparts and
via facsimile, each of which shall be considered an original instrument, but all
of which together shall be considered one and the same agreement, and shall
become binding when one or more counterparts have been and executed and
delivered by each of the parties hereto.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first above written.
"Company"
WAVERIDER COMMUNICATIONS INC., a Nevada corporation
By: /s/ Charles W. Brown
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Name: Charles W. Brown
Title: Chief Executive Officer
"Parent"
WAVE WIRELESS CORPORATION, a Delaware corporation
By: /s/Daniel W. Rumsey
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Name: Daniel W. Rumsey
Title: Acting Chief Executive Officer
"Merger Sub"
WAVE ACQUISITION CORPORATION, a Nevada corporation
By: /s/ Daniel W. Rumsey
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Name: Daniel W. Rumsey
Title: Chief Executive Officer